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April 5, 2011

SCOTUS stays executions in Arizona and Texas apparently based on lethal injection drug concerns

As detailed in this new CNN piece, the litigation over the use of new execution drugs in execution planned for this week has made it up to the US Supreme Court and it seems a majority of Justices are bothered enough by the issue to grant stays.  Here are the details from CNN's piece headlined "Texas, Arizona executions stayed by high court":

The Supreme Court for the second time this week has stopped a pending execution, giving lawyers for the condemned inmates more time to file their appeals. The justices Tuesday morning issued an order granting a stay of execution for Cleve Foster, about eight hours before his scheduled lethal injection. The Gulf War veteran was convicted along with another man of the 2002 murder of Nyanuer "Mary" Pal, a Sudanese immigrant he met at a Fort Worth bar.

The court said it needed more time to rule on the inmate's claims of prior ineffective assistance of counsel, and related claims of innocence of the murder. The state has now been given 30 days to respond to Foster's request for a rehearing of his appeals. The high court will then revisit the petition, and could then decide the execution can go forward. The court's brief order noted Justice Antonin Scalia would have denied the stay of execution.

This is the second time Foster, 47, has been granted a reprieve. His scheduled execution was stopped in January after he had already been given his last meal. It was to be the state's first execution using a new sedative, the first in the lethal drug cocktail. A nationwide shortage of sodium thiopental forced corrections officials to recently announce they would use pentobarbital, a barbiturate that has alternately been used to put animals to sleep.

Foster's lawyers challenged that change, saying Texas foisted the new protocols so late, with little time for legal or medical review. "I'm enormously relieved on behalf of my client and his family, and I'm glad that the Supreme Court will be looking, at least preliminarily, at the important issues we've raised," Maurie Levin, representing Foster, told CNN. "I'm very relieved Texas will not be going forward in light of all the questions and chaos using their new execution protocol."...

A Texas corrections spokeswoman said the change in chemicals was prompted by an expiration date at the end of March for the state's ready supply of sodium thiopental. Foster's execution was to be one of seven scheduled in Texas through August. Two men had already been executed this year in the nation's busiest execution state.

The justices had also stopped Tuesday's planned execution in Arizona of Daniel Wayne Cook, issuing an order the previous evening. He was convicted of the 1987 murder/rape/torture of two men. His lawyers had filed appeals similar to Foster's: contesting his earlier legal representation; and contesting the drugs to be used in the lethal injection, claiming they were illegally imported and may be unsafe. Cook now has several more weeks to challenge his capital punishment, and the Supreme Court may not revisit the petition perhaps until the fall. Arizona officials had executed another inmate last week, and they had also planned on using the anesthetic pentobarbital in future executions.

Pentobarbital has become the new legal flashpoint over capital punishment. It was used in a U.S. execution for the first time in December, when it was administered as the first ingredient in a three-drug cocktail used in a lethal injection given to an Oklahoma inmate. It also has limited Food and Drug Administration approval in smaller doses for humans as a mild anesthetic and to treat some seizures. Many physicians say they no longer administer it to people for medical purposes.

Ohio last month became the first state to use the chemical as a single lethal dose. There were no reported complications and this could encourage other states to follow suit, barring any future constitutional challenges to this drug's safety and application. An execution is scheduled there next week.

The SCOTUS order in Foster v. Texas (10-8317) is available here, and the SCOTUS order in Cook v. Arizona (10-9742) is available here.

April 5, 2011 at 03:09 PM | Permalink


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On the Foster case, what happened? Scotus stayed his execution on what seems like the same grounds, then rejected his appeal and lifted the stay. What changed in those months? It's discouraging two rapist-murderers with multiple victims receive stays for such flimsy reasons. The families of Foster's victims have already been through this once, Cook's victims' families have waited for 24 years. This is awful.

Posted by: MikeinCT | Apr 5, 2011 3:35:40 PM

My understanding is that the Arizona matter was stayed due solely to an issue relating solely to, for lack of a better term, appellate ineffectiveness.

Posted by: anon | Apr 5, 2011 4:15:30 PM


Blame it on this radical left pinko commie/socialist Catholic-Jewish--fem-lib- Supreme Court. When Michele Bachman is President, she'll appointg real American bubba juges and then no more stays for ANY reason.

Posted by: anon11 | Apr 5, 2011 5:01:30 PM

It seems more likely this is related to ineffective assistance of appellate counsel. In many states you never get a chance to litigate the issue because your post-conviction counsel are themselves ineffective and there's no right for them to be effective.

Posted by: jsmith | Apr 5, 2011 5:05:58 PM

Is your side so weak that you can't come up with an argument and resort to silly rants?

Posted by: MikeinCT | Apr 5, 2011 6:04:09 PM

Are you talking about Cook and his claims of an abusive childhood? There's been a bunch of real cases of incompetence but as far as I know Cook kept these claims to himself until recently, so I don't see what his state appellate attorney could have done.

Posted by: MikeinCT | Apr 5, 2011 6:10:11 PM


I am confused also about Foster. Apparently, the petition for rehearing was never disposed of and Texas set the execution date. I don't recall this ever happening before. How many times is SCOTUS hearing state postconviction appeals? The stay lifted a couple of months ago was without dissent and now 8 justices want to hear it again? Or is it different issues?

Posted by: DaveP | Apr 5, 2011 7:06:15 PM

The strength of the evidence notwithstanding, there's currently a gaping hole in the appellate system through which defendants can fall. If a state makes no provision for effective counsel at the post-conviction stage their rights to effective appellate counsel (and effective trial counsel if the state, as many do, forbid the raising of IAC claims until the post conviction phase) will never be vindicated.

Posted by: jsmith | Apr 6, 2011 2:15:38 AM


the only case I could remember close to this Foster one is Darden v. Wainwright. SCOTUS affirmed the 11th Circuit 5-4 and Florida set an execution date. Darden moved to stay because the rehearing wasn't resolved, got a delay and eventually was executed on his 7th death warrant. I believe this case was one that started Blackmun on his anti-death penalty slide.

Posted by: DaveP | Apr 6, 2011 6:34:28 AM

Apparently, the Court has a soft spot for murderers who file for rehearing the Friday before their scheduled execution date. Texas set the second date shortly after cert. was denied in the middle of January (note of course that the murderer had his three sets of "appeals", direct, state post-conviction and federal habeas). The murderer waited past the ordinary date for filing a rehearing and then the Court decides to bail him out? Since when, in our federal system, should federal courts jerk states (and victims' families) around in such a manner--if you read Supreme Court caselaw, the answer is NEVER (see McDonough v. Hill). It is irresponsible, and it should be the impetus to barring any and all federal stays of state execution dates. And the Supreme Court couldn't even be bothered to write its reasoning. No weighing of the equities, no nothing. A pathetic display. And one which brings the Court into disrepute. This is the exercise of naked power, not law.

Posted by: federalist | Apr 6, 2011 6:53:53 AM

federalist, your objections are ill founded and hypocritical. Even if your point is accepted, how many stays of execution are denied with next to no reasoning? You cheer when a man is sent to his death with a 'naked exercise of power', but rally against injustice if they are saved by the same.

The premise of your argument is also faulty. Granting a stay pending determination of a cert petition doesn't need any reasoning because the process that led to the decision is clear: five justices agreed that a stay was necessary while they considered the issue raised in the petition (or motion for rehearing in Foster's case).

This is hardly new or unclear. It is simply the normal process of adjudication in the US. Your pretend outrage when the result is not one that you wish reveals the true reasons for your objection and it has nothing to do with concern for the victims. You simply like power and crave the thrill of being part of the society that executes an 'undesirable'.

Posted by: jsmith | Apr 6, 2011 2:51:40 PM


what issue did SCOTUS find worthy of letting Foster file a motion for rehearing on April 1, when cert was denied on Jan 18? Only Scalia would have denied, so what did the other 8 find interesting? Looking at the docket on Foster's case, he has sure had his share of litigation at the Court since cert was denied from the 5th Circuit. A seperate petition was also denied on Feb 22.

Posted by: DaveP | Apr 6, 2011 3:24:48 PM

I don't know the answer to that. If I had to guess I'd say that the Court finds the facts for Cook so compelling that they're minded to not only grant cert but eventually find in his favour. The first part of his petition recounts the terrible abuse that he suffered, starting in utero and continuing without end throughout the rest of his childhood and into his late teens. The prosecutor has said that if he knew about the abuse he wouldn't have even sought the death penalty and it is hard to see any rational jury not sparing the man if the mitigating evidence were properly presented. If so then Foster must also get a stay as the same legal issue arises in his case.

An alternative explanation is that the Court is minded to do something about the ineffectiveness issue for some reason but may not grant cert in Cook's case because he dismissed his lawyer and represented himself at trial, which would complicate any ruling. Foster may therefore be a backup to grant cert on if it's decided the issues in Cook would make an opinion too messy.

Posted by: jsmith | Apr 6, 2011 5:18:27 PM


thanks. There is something going on there that obviously we can only guess at.You could be right. For 8 justices to grant a stay on a rehearing that was filed way late and 4 days before the execution begs the question. Texas has to respond to the rehearing request and we will see what happens. In Cook, with the prosecution stating what you said above and the mitigating evidence that wasn't presented coupled with him representing himself, I am surprised the Parole Board denied clemency. In Landrigan last year, it split 2-2.

Posted by: DaveP | Apr 6, 2011 7:57:30 PM

I am sorry to be repetitive and cluttering, but the stupidity of the lawyer is repetitive and cluttering.

1) These substances are not medication. They are poison. They are not meant to be safe and effective in the treatment of disease. They are meant to be lethal and effective in the taking of a life.

2) The Supreme Court has no knowledge of poisons and methods of execution. Any utterance it might make will violate Daubert standards and sound stupid. It has no more knowledge of execution than of oil drilling or bridge building.

3) The defense bar has malice, if that is defined as knowledge. It knows these appeals are pretextual. They should be made to pay all costs from personal assets.

Posted by: Supremacy Claus | Apr 7, 2011 2:18:33 PM

jsmith, perhaps you need a little lesson in federalism, comity and justice. First of all, with respect to Foster, Foster had a direct state appeal, state post-conviction and federal habeas remedies. He went through all of them. He then filed another state appeal, and the Supreme Court stayed his execution, which is in itself irregular. Then, the Supreme Court denied cert., and then the criminal filed a motion for rehearing afterwards, and on a Friday before the execution. McDonough v. Hill is crystal clear that states and victims' families should be protected from such gamesmanship.

Cook has had all his regular appeals and federal habeas. It's been 24 years since the murders. He could have raised the current issue far earlier. And now the Supreme Court jerks around the victims' families. And all without a word. Disgusting.

The Supreme Court should have the power to stay executions permanently withdrawn.

Posted by: federalist | Apr 7, 2011 9:17:07 PM

federalist, last I checked the Constitution of the United States is the Supreme Law of the nation and the Supreme Court is the body that interprets it. Your much vaunted federalism is not a high minded principle; it is the philosophy that brought the US slavery and repeated human rights abuse. I have no qualms about being rid of it to the extent it would deprive someone of their life.

Posted by: jsmith | Apr 9, 2011 1:16:49 AM

It also allowed some states to ban slavery while most permitted it and legalize women's suffrage and interracial marriage while others banned it.

Posted by: MikeinCT | Apr 9, 2011 12:21:23 PM

jsmith, read McDonough v. Hill and get back to me. The Supreme Court has the power to do this. It doesn't make it consistent with what it has said in the past.

Posted by: federalist | Apr 9, 2011 4:03:33 PM

And yes, I still think that federal courts should simply be prevented from staying state executions. The abuse of power has got to stop.

Posted by: federalist | Apr 9, 2011 4:04:33 PM

I can understand your anger at SCOTUS with staying executions. I know the federal courts will always get to intervene in state executions, so there is no reason for me to opine on that. It is frustrating that killers like Foster and Cook get endless appeals. At least Texas and Arizona are trying to carry them out. There are approximately 50 inmates in Florida ready for a warrant. Only one has been signed in the past year.
Following capital litigation for over 30 years has taught me one thing. Always expect the unexpected with death cases. Even things written in stone are not always followed.

Posted by: DaveP | Apr 9, 2011 7:24:52 PM

Thank you for sharing,it is very helpful and I really like it!

Posted by: Big pony | Apr 11, 2011 6:04:05 AM

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